EU: Data
Retention proposal partly illegal, say Council and Commission
lawyers
The Legal Services of both the Council and Commission have argued
that the controversial proposal for a Framework Decision on the
retention of telephone and Internet data, proposed last April
by the UK and several other Member States, is partly illegal.

The Legal Services have confined themselves to examining the
issue of whether part of the proposed Framework Decision falls
within the scope of EC law (the 'first pillar', dealing with
economic issues, among others) or within the scope of the 'third
pillar' (Title VI of the TEU, dealing with criminal law and policing).
Both Legal Services conclude that the provisions in the proposed
Framework Decision dealing with the obligations on service providers
to retain and collect data on the use of phones and the Internet
would be illegal, because this issue should instead be addressed
by EC 'internal market' legislation on the regulation of telecommunications.
In fact, a controversial EC Directive of 2002 already addressed
this issue, by leaving Member States a discretionary option to
require telecoms service providers to retain data on public use
of telephones and the Internet for use by the law enforcement
agecnies. The proposed Framework Decision would go further by
making it mandatory for Member States to impose such requirements
on telecoms service providers and by laying down some detail
on the precise obligations that must be imposed.

The practical impact of the two Legal Services' opinions, if
they are accepted by the EU institutions and the Member States,
is that the proposed Framework Decision will have to be amended
to take out all provisions relating to the obligations of telecom
service providers. These provisions will instead appear in a
separate parallel proposal for a Directive, which the Commission
has already said it will propose in the near future. The decision-making
procedure for the Directive will be very different from that
applying to the Framework Decision: it will have to be proposed
by the Commission (rather than the Member States); the Council
will vote by a 'qualified majority' (rather than unanimity);
and the European Parliament will have equal powers with the Council
(the Member States' ministers) over adoption of the legislation
(rather than being consulted only). The EU's Court of Justice
also will have much wider jurisdiction over the Directive than
it will have over the Framework Decision.

Unfortunately, the two Legal Services failed to consider whether
the proposed measures, whatever form they take, would infringe
the right to privacy or not. As the prior Statewatch analysis
of the proposed Framework Decision showed, the initial proposal
suffered from profound and fundamental flaws. In light of these
flaws, the initial proposal cannot be justified in light of the
right to privacy guaranteed by the EU Charter of Fundamental
Rights, the general principles of EU law, Article 8 of the European
Convention on Human Rights, national constitutions and other
international human rights treaties. But if the proposed Framework
Decision is split into two measures as suggested by the legal
services, the European Parliament will have the opportunity to
show its concerns about the right to privacy and insist upon
vetoing the proposed Directive or insisting upon fundamental
changes to it, in order to ensure that this fundamental human
right is protected.

This would also be an opportunity for the European Parliament
to insist upon a proper initial impact assessment to examine
whether the huge cost which the proposal would entail for an
industry crucial to Europe's economic growth can be justified,
in light of the less intrusive but more effective measures that
could be taken to focus police investigations on persons who
are reasonably suspected of involvement in serious crime - instead
of mass surveillance of the entire society.

Tony Bunyan, Statewatch editor, comments:

"The proposal should be withdrawn as the law enforcement
agencies have all the powers they need. If it goes ahead and
the costs are bourne by the communications industry we will all
end up having to pay to be placed under surveillance by the state!"

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